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The Law HandbookYOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES

12th EDITION

REDFERN LEGAL CENTRE PUBLISHING


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Published in Sydney byThomson Reuters (Professional) Australia LimitedABN 64 058 914 668100 Harris Street, Pyrmont, NSW

First edition published by Redfern Legal Centre as The Legal Resources Book (NSW)in 1978.

First published as The Law Handbookin 1983Second edition 1986Third edition 1988Fourth edition 1991Fifth edition 1995Sixth edition 1997Seventh edition 1999Eighth edition 2002Ninth edition 2004Tenth edition 2007Eleventh edition 2009Twelfth edition 2012

Note to readers: While every effort has been made to ensure the information in this book is as up to date and as accurate aspossible, the law is complex and constantly changing and readers are advised to seek expert advice when faced with specific

problems. The Law Handbookis intended as a guide to the law and should not be used as a substitute for legal advice.

National Library of Australia Cataloguing-in-Publication entryThe law handbook: your practical guide to the law in NSW/edited by Helen Sheridan. 12th ed. Includes index ISBN 9780455229393 Law New South Wales Handbooks, manuals, etc. Legislation New South Wales Jurisprudence New South Wales Handbooks, manuals, etc. Civil rights New South Wales. Sheridan, Helen

349.944

Thomson Reuters (Professional) Australia Limited 2012

This publication is copyright. While copyright of the work as a whole is vested in Thomson Reuters (Professional) AustraliaLimited 2012, copyright of individual chapters is retained by the chapter authors. Other than for the purposes of and subjectto the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical,microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without priorwritten permission. Inquiries should be addressed to the publishers.

This edition is up to date as of 29 February 2012.

The Law Handbookis part of a family of legal resource books published in other states:Vic: The Law Handbookby Fitzroy Legal Service, ph: (03) 9419 3744SA: The Law Handbookby the Legal Services Commission of SA, ph: (08) 8463 3555

Qld: The Law Handbookby Caxton Legal Centre, ph: (07) 3254 1811WA: The Law Handbook (WA)by the Sussex Street Community Law Service, ph: (08) 6253 9500Tas: The Tasmanian Law Handbookby Hobart Community Legal Service, ph: (03) 6223 2500NT: The Law Handbookby Northern Territory Legal Aid Commission and Darwin Community Legal Services,ph: (08) 8982 1111

Editors: Sandra Bassam, David GardinerProduct Developer: Helen SheridanPublisher: Robert WilsonDesktop publishing: Midland Typesetters

Printed by: Ligare Pty Ltd, Riverwood, NSW

This book has been printed on paper certified by the Programme for the Endorsementof Forest Certification (PEFC). PEFC is committed to sustainable forest managementthrough third party forest certification of responsibly managed forests.


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[1.380] Legal documents[1.390] Agreements and deeds[1.410] Birth, death and marriage

certificates[1.440] Changing a name[1.510] Statutory declarations[1.570] Affidavits[1.620] Notices to attend court[1.650] Passports[1.740] Power of attorney

[1.830] Doing legal research[1.840] Finding the law[1.860] Material about the law

[1.20] Fundamental concepts[1.30] Common law and statute law[1.70] Criminal law and civil law[1.90] State law and federal law

[1.110] Courts[1.120] State courts[1.160] Federal courts[1.210] Juries

[1.240] Tribunals and commissions[1.280] Time limits[1.310] Appeals[1.350] Enforcing the law

1

About the legal system

Lynda Muston Assistant Commissioner (Legal), Office of theLegal Services Commissioner

Jill Quin Legal Information Access Centre, State Library of New South WalesSimon Rice Australian National University, Canberra

Contents


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2 The Law Handbook

[1.10] Australia inherited its legal systemfrom England at the time of colonisation. Sincethen laws have been interpreted, applied anddeveloped by Australian judges, and new lawshave been made by Australian parliaments.

This chapter explains the basics of how ourlegal system works, including: how laws are made how courts and tribunals operate how laws are enforced.

It goes on to look at some of the documentsused in the day-to-day operation of the law,including: deeds and agreements birth, death and marriage certicates documents issued by courts statements made under oath passports powers of attorney.

[1.20] Fundamental conceptsEvery law in Australia is: either common law or statute law, and either criminal law or civil law, and either federal law or state law.Every law also has a particularjurisdiction. Thejurisdiction of a law includes:

the geographical area it covers (for example,NSW or the whole of Australia)

its subject matter (for example, family law).

[1.30] Common law and statute lawAustralian law comes from either: the common law (judge-made law or case

law), or an Act of parliament (statute law).Aboriginal and Torres Strait Islander customarylaw also has some limited application (see Abor-

iginal and Torres Strait Islander law at [1.60]).

[1.40] Common lawThe centuries-old tradition of English law is thatjudges decide each dispute (a case) as it comesto court, and give reasons for their decisions.These reasons, or judgments, are published inbooks called law reports (and now also on theinternet). The accumulation of judges decisionsover many years is what is called the commonlaw law made by judges in deciding commondisputes.

NSW inherited the English common law,

and from early in the 19th century judges in

NSW have been developing the common lawin Australia.

The doctrine of precedent

Judges are bound by a strong tradition to decidecases consistently with earlier decisions basedon similar facts. This approach to decision-

making is called the doctrine of precedent, and

the principles and rules generated form, collec-tively, the principles and rules of the common

law. If the facts are completely new, withoutprecedent, a judge will develop a new principle

as consistently as possible with similar cases. In

this way, judges develop common law rules

in areas not covered by legislation.


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1 About the legal system 3

(approval by the governor-general or the relevantstate governor) before it becomes an Act.

When does an Act come into effect?

After a Bill becomes an Act, it does not necessarilybecome operational (commence) immediately.

It may commence on a date specied in theAct itself, or by proclamation (publication inthe Government Gazette). Different parts ofan Act may commence at different times. If notime is specied, an Act commences 28 daysafter receiving the royal assent.

In practice, some Acts or parts of an Actnever actually come into operation because, fora range of practical or political reasons, theyare never proclaimed to commence.

Once an Act, or part of it, commences, it

becomes law.Names of Acts

An Act is identied by name, date, and juris-diction; for example, the Family Law Act 1975(Cth), or the Fair Trading Act 1987 (NSW).The name usually indicates its content, the dateis the year it passed through parliament (whichis not necessarily the date it commenced), andthe jurisdiction is the parliament that passed it.

Definition of the terms used in an Act

Most Acts have a denitions section at thebeginning (around section 4), or a schedule atthe end called the Dictionary, to explain whatis meant by words and phrases used in it. Thesedenitions are crucial to understanding theAct.

Repeals and amendments

From time to time, a parliament repeals (doesaway with) or amends (changes) an Act.

It is important always to check the currencyof an Act you are reading to make sure that it

has not been amended.Delegated legislationThere are also laws associated with Acts thatgo into more detail than the more general termsof an Act. These are often called Regulations,but can have other names, including rules,ordinances and by-laws. They are collectivelyknown as delegated legislation, and they alwaysrelate to the Act under which they are made.

Delegated legislation such as Regulationsneeds to be considered, along with the Act,when researching the law.

Interpreting the lawJudges also have an important role in interpret-ing legislation (see How statute and commonlaw affect each other at [1.60]). The decisionsthey make in interpreting Acts of parliament

are precedents that courts can later use.The doctrine of precedent in Australia

Some of the rules that make up the doctrine ofprecedent in Australia are: In the hierarchy of the court system, a decision of a

higher court is binding on lower courts. Most courts are not bound to follow their own

previous decisions, although they are expected todo so.

The highest court in Australia, the High Court, is notbound to follow its own decisions.

The decisions of courts outside Australia are not

binding on Australian courts. However, Australiancourts can refer to them, often from the UnitedKingdom, for guidance or comparison if, forexample, a case is unusual or difficult.

When a court makes a decision, it gives reasonsfor its decision. Another case with similar but notidentical facts can be decided differently (that is, itcan be distinguished). It is often said that each casewill be decided on its own facts.

[1.50] Statute law

Acts of parliamentThere was no parliament in NSW until 1823.Before then the NSW governor had very widepowers to run the colony. English Acts of parlia-ment applied in NSW from 1828, and thereafterthe British government gradually increased therole of the NSW parliament while reducingthe power of the governor.

In 1855 the British government gave NSWclear powers to make its own laws, and Austra-lias parliament-made laws (statutes or Acts)

date from that time.Each Australian state has power to make its

own laws. Since 1901 the federal governmenthas had power to make laws for the whole ofAustralia within the powers of the Constitution(see What state, territory and federal laws coverat [1.100]).

Bills

While a state or federal parliament is consid-ering whether or not to pass an Act, the draftAct is called a Bill. A Bill must be agreed to by(passed by) parliament and receive royal assent


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Which has precedence?If an Act and a common law rule apply to thesame subject matter, and they are inconsis-tent, the Act overrides the common law to theextent of the inconsistency. If, for example, the

common law creates a new principle, parliamentcan overrule it or vary it with an Act. The HighCourt decision in the Mabocase and the subse-quent Native Title Act 1993(Cth) is an exampleof legislation which varied a common law rule.

Where the law is unclearOccasionally, the courts are uncertain about themeaning of an Act, or make unclear or unhelp-ful decisions about it.

It is particularly important to seek advicefrom a lawyer when the law is unclear.

Unconstitutional ActsThe High Court of Australia or a state SupremeCourt (for a state Act) can declare an Actinvalid and of no effect if (and only if) the Act isfound to be unconstitutional (that is, the parlia-ment did not actually have the power to makeit see state and federal constitutions at [1.90]).Under human right legislation in Victoria andthe ACT, but nowhere else in Australia, a stateSupreme Court can declare that an Act is inbreach of human rights, but that declarationdoes not invalidate the Act.

For information on how to find statute and commonlaw using a range of legal tools and resources, see

Doing legal research at [1.830].

Aboriginal and Torres Strait Islander lawThe customary laws of Aboriginal and Torres StraitIslander peoples were given little recognition by thelegal system until recently.

When the English colonised Australia, they ignoredAboriginal ownership of land. This continued untilquite recently, assisted by the legal fiction that Australiawas terra nullius(land belonging to no-one) at the timeof colonisation. The argument was that Australia wassettled rather than conquered.

As a result of the High Court decision in Mabo thereis now limited recognition of Aboriginal ownershipand use of land (native title). As well, customarylaw has some limited influence in the sentencing ofsome Aboriginal offenders and in areas such as familyrelationships and the protection of sacred sites.

The law as it particularly concerns Aboriginalpeople is discussed in detail in chapter 2, Aboriginalpeople and the law.

How is delegated legislation made?

An Act usually empowers some authority (alocal council, parliamentary minister, publicauthority or public servant) to make Regula-tions from time to time. Regulations must besubmitted to parliament before they becomelaw. In NSW, the Minister in whose area ofresponsibility a regulation is made usually hasto give public notice of a proposed regulationand call for comments. Most regulations auto-matically expire ve years after they are made.

Publication of Acts and RegulationsThe most up-to-date versions of Acts and Regulationsare most easily available on the internet: see Doinglegal research at [1.830]. As well, they are printedin statute books for each year, available in the State

Library of New South Wales.

[1.60] How statute and commonlaw affect each otherInterpretation of ActsActs are sometimes drafted in very broad terms.Courts must often decide their meaning, andthe courts interpretation becomes part of thecommon law in that area. For example, the lawon families is found not only in the Common-

wealth Family Law Act, but also in the decisionscourts have made on matters controlled by theAct.

Interpretation Acts

An Act is interpreted according to rules anddenitions set out in an interpretation statutein each jurisdiction, such as the Acts Interpreta-tion Act 1901(Cth) and the Interpretation Act1987(NSW).

The purpose rule of interpretation

A very important rule made to assist in the interpretationof Acts is the purpose rule of interpretation, which saysthat Acts are to be interpreted in a way that promotesthe underlying purpose or object of the Act.

Can a judge overrule an Act?An Act is binding on all courts and judges.Judges can overrule or challenge the validity ofan Act only in rare circumstances (see Uncon-stitutional Acts below).


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Criminal law and civil law

[1.70] Criminal lawA crime, or offence, is conduct that is contrary

to the criminal laws that reect societys expec-tations of personal conduct, such as stealing,assault, fraud, failing to lodge tax returns, andpolluting.

The government has the role ofprosecutingor enforcing the criminal law against a personor company, usually through the police, theDirector of Public Prosecutions or some othergovernment body, such as the NSW Environ-mental Protection Authority.

A person who is being prosecuted in criminallaw is called the defendantor the accused.

The burden of proofIn criminal law, the burden (or onus) of proofis on the prosecution. The accused is presumedto be innocent until and unless the prosecutioncan prove them guilty.

The standard of proofIn criminal law, the standard to which a pros-ecutor must prove an alleged offence is beyondreasonable doubt.

PenaltiesA penalty, such as a ne, a bond or imprison-ment, can be imposed on a person or companyfound to have committed a criminal offence.

It is possible to be found guilty but to haveno conviction recorded or penalty imposed.

Criminal law is discussed in detail in chapter 16,Criminal law.

[1.80] Civil lawBroadly speaking, civil law is all law that is notcriminal law. Examples of matters that comeunder the heading civil law are the law of negli-gence, family law and contract law. (The term

civil law also refers to the type of legal systemthat is found in many European, African andSouth American countries, in contrast with thecommon law system of England, the UnitedStates and the British Commonwealth.)

Civil law cases usually involve individuals,companies or government bodies taking legalaction against other individuals, companies orgovernment bodies, often for doing somethingthat is alleged to be unfair, harmful, or contraryto an agreement.

A person bringing a case is called a plain-tiffor, sometimes, an applicantor complainant.A person against whom an action is taken is

called a defendantor respondent.

Administrative lawAdministrative law is a form of civil law thatusually involves legal action between a personor company and a government agency, some-thing that has become much more commonin the last 30 years. Some administrative lawactions seek review of a government decision,and others try to compel or prevent action bythe government.

The standard of proofIn civil law, the standard to which a personmust prove their allegation is on the balanceof probabilities, meaning it must be provedthat something is more likely than not to havehappened.

Court ordersIn a civil case the plaintiff or applicant can seekan order for compensation (damages) fromthe defendant, or an order that some conduct

of the defendant be required or stopped (aninjunction). In administrative law, the court canorder that a decision under review is afrmed,varied or set aside, or that a government agencymust act or cease from acting in a certain way.


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State law and federal law[1.90] State and federalconstitutions

Australia and its states all have constitutions.These are the source of the various parlia-ments power to make legislation. If an Actgoes beyond the power given in the constitu-tion, then the Act, or part of it, can be declaredby certain courts to be invalid.

The territories are in a different position.They are created by the Commonwealthgovernment, and their powers can be createdand limited by Commonwealth legislation.

[1.100] What state, territory andfederal laws coverThe laws of the federal parliament apply to allAustralians, while NSW law applies to peopleand things in NSW or having a connection withNSW. Generally, federal and state legislationdeal with different matters.

Federal legislationThe federal parliament can only make lawsabout matters listed in s.51 of the Australian

Constitution. If a matter is not listed, the powerto make laws about it lies with the states.

Matters about which the federal parliamentcan legislate include: defence taxation customs migration social security marriage.These powers reflect the world as the drafters

of the Constitution saw it in the 1890s. Forexample, the marriage power does not coverthe families of de facto couples, which is a stateconcern. But under s.51 the states can agree tohand over powers to the federal parliament,and they have done so for de facto couples toavoid confusion and duplication.

The external affairs power

Section 51 of the Constitution also gives thefederal government the power to make laws in

relation to external affairs. It is this power thatenables the federal government to sign interna-tional treaties, and federal parliament to makelaws giving effect to them.

For example, the Racial Discrimination Act1975gives effect to Australias obligations underthe United Nations Convention for the Elimi-nation of all forms of Racial Discrimination.

State and territory legislationUnder their own constitutions, state parlia-ments have the general power to make a law onany matter as long as it is for the peace, welfareand good government of the state a very wide

power. This means that states can make a lawon any matter, including matters listed in s.51of the Constitution, as long as the law is notinconsistent with a Commonwealth law.

Matters dealt with by the states commonlyinclude: health education roads and trafc building local government the environment.The Australian Capital Territory and theNorthern Territory makes laws on similarmatters, not under a constitution but underself-governing powers given to them by theCommonwealth parliament.

Inconsistent legislationA state Act and a Commonwealth Act can coverthe same matter as long as they are not inconsis-tent (for example, as well as the CommonwealthRacial Discrimination Act 1975, all states have

laws prohibiting racial discrimination). If thelaws are inconsistent, the federal law prevailsto the extent of the inconsistency (Austra-lian Constitution s.109). The same is true ofterritory legislation, not because of s.109 butbecause of the terms of self-governing powersgiven to the territories.


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[1.110] CourtsMany courts state and federal operate inNSW.

A courts decision is binding on the peopleinvolved in to a case (known as the parties to a

case), and must be complied with. Further courtproceedings can be taken to force compliance.

Court process is considered in detail in chapter 14,Court.

Summary offences, indictable offences and committal hearingsexpense of the hearing and limits the jail term that canbe imposed if there is a conviction.

Committal hearings

Indictable offences that are not dealt with by the LocalCourt are dealt with in the District Court or SupremeCourt, but only after a committal (preliminary) hearingin the Local Court. At a committal hearing the magistratedecides whether there is enough evidence to send theaccused for a trial.

The law relating to committal for trial and the

classification of crimes as summary and indictable arein the Criminal Procedure Act1986.

Summary offences

Summary offences are common offences such asstealing, assault and possession of drugs, and are dealtwith in the Local Court.

Indictable offences

Indictable offences are more serious offences, suchas assault occasioning actual bodily harm, and drugdealing, and are dealt with in the District or SupremeCourts.

Indictable offences dealt with summarily

Some specified indictable offences can be dealt withas if they were summary offences (that is, in the LocalCourt) unless the prosecution (or in some cases theaccused) objects. Doing this reduces the length and

[1.120] State courtsThe three main courts in NSW are: the Local Court (which used to be called the

Court of Petty Sessions)

the District Court the Supreme Court.

Inequities in the law

To a large extent these inequities have occurredbecause people from these groups are not usuallyincluded among the law-makers.

Measures to improve access to the legal systeminclude law reform, the ongoing education of judges,the availability of interpreters, the work of communitylegal centres, plain language publications, promotingpro bono work among lawyers, and providing legalaid.

The law works differently for different people. Somegroups are consistently disadvantaged in our system;for example: the legal system operates in English, which is not

the first language of many Australians most judges are not familiar with the day-to-

day circumstances of, for example, people withdisabilities and Aboriginal people, and they may useprocesses and make decisions that are insensitive tothose people

legal advice and resources are not readily available topeople who do not have the means to pay for them.


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The maximum jail sentence a judge canimpose is usually more than the maximum thatcan be imposed by a magistrate.

AppealsA single judge of the District Court decides

appeals from the Local Court, and from sometribunals (at [1.240]) such as the Consumer,Trader and Tenancy Tribunal, and the VictimsCompensation Tribunal.

[1.150] The Supreme CourtThe Supreme Court decides civil and criminalmatters under state laws that are outside thejurisdiction of the Local and District Courts orspecialist tribunals. The Land and EnvironmentCourt is a specialist court with the same statusas the Supreme Court.

Civil mattersIn civil law, the Supreme Court hears civilclaims over $750,000, commercial disputes,and matters relating toprobate, judicial reviewof administrative decisions, and admiralty.Civil cases in the Supreme Court are decided bya judge alone except in defamation trials andspecial circumstances see Juries at [1.210].

Criminal mattersThe Supreme Court hears bail applications,and some serious indictable offences suchas murder and manslaughter, complex drugcases, and serious breaches of the CorporationsLaw. Criminal cases in the Supreme Court aredecided by a judge and a jury (unless it is anon-jury trial, in the same way as for SupremeCourt criminal matters see [1.140]).

AppealsThe Supreme Court decides appeals from the

District Court and some tribunals.Sitting as the Court of Appeal (with a panel

of three judges), it decides appeals from singlejudge decisions in the Supreme Court.

Sitting as the Court of Criminal Appeal(with a panel of three or ve judges), it decidescriminal appeals from single judge decisions inthe Supreme Court and from decisions in theDistrict Court.

[1.130] The Local CourtThe Local Court has jurisdiction to deal with: small civil claims where the amount claimed

is up to $10,000 civil claims where the amount claimed is up

to $100,000 or, if the parties agree, up to$120,000 summary offences some indictable offences committal hearings for other indictable

offences.All cases in the Local Court are decided by amagistrate (not a judge), without a jury. Themaximum jail sentence a magistrate can imposeis usually two years less for some offences.

Other courts at the Local Court levelOther NSW courts at the same level of the hierarchyas the Local Court include the Coroners Court, theChildrens Court and the Chief Industrial MagistratesCourt.

[1.140] The District CourtThe District Court has jurisdiction to dealwith: most indictable criminal cases (see The

Supreme Court at [1.150])

appeals from decisions of magistrates inmost criminal matters civil cases where the amount claimed is up

to $750,000, or more if the parties agree orthe case is either: a motor accident personal injury claim, or a work injury damages claim under the

Workers Compensation Act1987.

Civil mattersCivil cases in the District Court are decided bya judge alone except in defamation trials and

special circumstances see Juries at [1.210].

Criminal mattersCriminal cases in the District Court are usuallyheard by a judge and jury, with the judgedeciding the law and the jury deciding ques-tions of fact.

In some circumstances a case can be heardby a judge alone, without a jury, but only if theaccused requests it after getting legal advice,and the prosecution agrees.


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[1.160] Federal courtsFederal courts in NSW deal with federal lawswhen the circumstances arise in NSW or involveNSW people or companies. Areas of federallaw include: family law discrimination bankruptcy consumer protection privacy actions under the federal Competition and

Consumer Act taxation review of decisions made by federal govern-

ment ofcers.

The main federal courts are: the Federal Magistrates Court the Federal Court of Australia the Family Court of Australia the High Court of Australia.

[1.170] The Federal MagistratesCourtThe Federal Magistrates Court was establishedto offer a lower level, simpler federal court

and ease the workload of the Federal Courtand the Family Court. It shares the jurisdic-tion of both those courts, but is independentof them. It deals with a wide range of matters,including: family law (a large part of its work but see

The Family Court of Australia at [1.190]) consumer protection discrimination bankruptcy copyright

migration privacy.

[1.180] The Federal Court ofAustralia

The Federal Courts business includes: actions under the federal Competition and

Consumer Act2010 bankruptcy taxation judicial review of government decisions appeals from federal tribunals.

[1.190] The Family Court ofAustralia

The Family Court is like a specialist arm of theFederal Court. It deals with: cases concerning property and children of a

marriage (see chapter 26, Family law) cases concerning property and children

of opposite-sex and same-sex de factocouples.

[1.200] The High Court ofAustraliaThe High Court sits permanently in Canberra

but from time to time in other capital cities.It was established by the Constitution as thehighest court in Australia.

Some matters (for example, constitutionalmatters) start in the High Court. The HighCourt also hears appeals from: state Supreme Courts the federal courts.The High Court is the nal court of appeal forAustralia, and its decisions are binding on allcourts and tribunals. It is possible to appeal to

the High Court only if the High Court givespermission (special leave).

[1.210] JuriesJuries are most commonly used in indictablecriminal matters. Occasionally they are used incivil matters, usually defamation.

It is considered that jurors, as randomlyselected members of the public, will take anindependent and commonsense approach todeciding the facts.


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[1.230] The jury rollJury rolls are generated randomly by computerfrom the electoral rolls, so everyone enrolled asa voter in NSW is available for jury service.

Anyone on the jury roll may be summonsed

to court for jury duty. The NSW Sheriffs Ofceis responsible for arrangements relating tojuries.

People on the jury roll are advised by mail.The notice advises the period of inclusion onthe jury roll (generally 12 months).

Who is not eligible?The categories of people disqualied or ineli-gible for jury service under the Jury Act (inSchedules 1 and 2) are listed on the Sheriffsnotice. They include, among others:

parliamentarians lawyers police ofcers people unable to read or understand

English.

Who is exempt?The Jury Act (in Schedule 3) exempts peoplein some categories from jury service. Theseinclude: pregnant women people aged 70 and over

practising doctors, dentists andpharmacists.

If summonsed to jury duty, a person cancomplete the appropriate section of thesummons and return it with proof of their rightto be exempt.

Who can be excused?A person who is not in an exempt category canask to be excused from serving on a jury bycompleting a form on the back of the summonsand returning it to the NSW Sheriffs Ofce.

If the application is rejected, the person mustattend for jury service as required, althoughthey can then apply to the judge or coroner tobe excused.

Only very good reasons, such as a medicalcondition or a threat to the viability of abusiness, are likely to be accepted. The SheriffsOfce and judges are reluctant to excuse peoplefrom carrying out their civic duty.

Further information on jury service is available from

the NSW Sheriffs Office.

[1.220] What the jury doesThe jury decides the facts of a case. In criminalmatters the jury listens to the evidence anddecides whether criminal guilt has been provedbeyond reasonable doubt. The judge decides

legal issues that arise in the case and gives thejury guidance and directions.The procedures for a jury are described in

theJury Act 1977(NSW).

Criminal juriesIn indictable cases, tried in the District orSupreme Courts, a jury consisting of 12 peopledecides a persons guilt or innocence.

If a juror is unable to continue, then thenumber can be reduced to 10, or even eightif the trial has been going for more than two

months, or both the prosecution and defenceagree. The jurys decision, called a verdict, mustbe unanimous. If, after trying to reach a verdictfor at least eight hours, the jury cannot reacha unanimous verdict, then the court can allowa majority verdict of 11 out of 12, or 10 outof 11. A jury of fewer than 11 must always beunanimous.

Non-jury trialsIt used to be mandatory to have juries in seriouscriminal cases. However, it is now possible to havea District or Supreme Court trial with a judge sittingalone (without a jury) where the accused requests itafter getting legal advice and the Director of PublicProsecutions agrees.

Civil casesJuries are never used in the Local Court. Theyare used in civil cases in the District and SupremeCourts very rarely. They are used in defamationcases if a party requests it and the court agrees.They can be used in other cases when a party

requests it, the judge thinks it is necessary inthe interests of justice and the party pays thecost of it.

A civil jury usually consists of four people,but can be 12 in the Supreme Court.

Coroners casesA jury can be used at a coroners inquest into thecause of a death in certain circumstances, butonly if the State Coroner considers that thereare sufcient reasons to justify it (Coroners Act(NSW) s.48).

A coroners jury consists of six people.


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[1.240] Tribunals and commissionsMany state and federal tribunals and commis-sions operate alongside the court system.Whether they are called tribunals or commis-sions, they are specialist bodies created by Actsof parliament to deal with particular issues.

Tribunals and commissions are usuallyintended to be easier to use, cheaper and fasterthan courts. For example, unlike courts, theyare usually not bound by the rules of evidence(see chapter 14, Court).

To understand the powers and proceduresof a specic tribunal, it is necessary to look atthe Act that created it, regulations and rules,and practice notes issued by the tribunal.

[1.250] How tribunals operateTribunals usually hold hearings to decidecases.

A few tribunals, such as the VictimsCompensation Tribunal, usually decide caseson the basis of written submissions only.

NSW tribunalsTribunals and commissions established by a NSW lawdeal with NSW state law. Federal tribunals located in NSW

deal with federal law. Some of them are listed below.State tribunals the Administrative Decisions Tribunal the Consumer, Trader and Tenancy Tribunal the Guardianship Tribunal the Victims Compensation Tribunal the Workers Compensation Commission

Federal tribunals the Administrative Appeals Tribunal the National Native Title Tribunal the Refugee Review Tribunal the Social Security Appeals Tribunal.

In March 2012 a NSW Legislative Council committeerecommended that the government consider consoli-dating a number of tribunals into a single large tribunalwith specialist divisions. The governments response tothe recommendations is not due until September 2012,and if a consolidation occurs it will not be until 2013 atthe earliest.

Who conducts tribunal cases?In many tribunals cases are conducted (heard)by two or three tribunal members, at least oneof whom has legal training. The other members

have relevant expertise.

In some tribunals, such as the RefugeeReview Tribunal, just one member conductsthe hearing.

Formal and informal hearingsThe style of hearing varies between tribunals.In some (such as the Administrative DecisionsTribunal), hearings resemble those of courts lawyers represent the parties, witnesses arecross-examined and so on. In others (such asthe Social Security Appeals Tribunal), hearingsare fairly informal the people involved mightsit around a table, and legal and other repre-sentation may be prohibited unless the tribunal

gives permission. Differently from courts, tribu-nals often allow non-lawyers to assist people inhearings.

Appeal from tribunal decisionsIn most cases there is a right, set out in therelevant Act, to appeal to a court against atribunal decision. Usually appeals are restrictedto legal questions the court usually cannotcome to new conclusions about the facts thathave already been decided.

Even if there is no right of appeal in the

Act, a person may be able to go to court toseekjudicial reviewof a tribunal decision. Thisis possible if the tribunal has acted outsideits jurisdiction, or has not complied with theformal requirements of procedural fairness (seechapter 10, Complaints).

[1.260] Commissions of inquiryCommissions of inquiry are set up by govern-ments for a limited period to investigateparticular issues or areas of concern. They

gather information in various ways, includingby holding hearings and calling witnesses.

They differ from courts and tribunals in thatthey do not make legally binding decisions, butinstead produce reports on their ndings withrecommendations for future action.

Recent topics for commissions of inquiryin NSW include electricity transactions (www.lawlink.nsw.gov.au/sciet) and acute care servicesin NSW public hospitals (www.lawlink.nsw.gov.auPublications).


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12 The Law Handbook

sions, including the power to summon a personto give evidence and produce documents. It isan offence to fail to comply, and a warrant canbe issued for the persons arrest. It is also anoffence not to answer questions or to know-ingly give false or misleading evidence.

Who can appearIt is up to the commissioner to decide whetherto allow a person to appear or be representedbefore a commission. This will be authorisedif: the person is substantially and directly

interested in the subject of the inquiry, or their conduct has been challenged to their

detriment (NSW Royal Commissions Acts.7).

Legal assistanceBoth state and federal governments mayprovide funding for legal assistance and repre-sentation for some people appearing at royalcommissions, or as witnesses. This funding is atthe discretion of the government and is not partof the legal aid budget.

Royal commission reports

At the end of an inquiry, the royal commissionproduces a report containing conclusions and

recommendations; for example: suggesting reform to laws or practices recommending that criminal or other

proceedings be taken against individuals.A royal commission can also refer evidence tolaw enforcement agencies.

The ICAC and the PICThe NSW Independent Commission Against Corruption(ICAC) and the Police Integrity Commission (PIC) havepowers of investigation very like those of a royalcommission, but they are permanent bodies. In some

respects they are like ongoing royal commissions,investigating one matter after another, but settingtheir own agenda under the general heading ofcorruption.

The ICAC and the PIC are discussed in chapter 10,Complaints.

Law reform commissionsThere is a law reform commission at both state andfederal level. They usually investigate questions referredto them by the relevant Attorney-General.

In NSW, individuals and groups can approach theLaw Reform Commission and suggest areas where

reform is needed. With the Attorney-Generals approval,the commission can then investigate these areas andmake recommendations. Members of the public canalso contribute to the process by making submissionson matters being investigated. The evidence ofcommunity groups with direct experience of peoplesproblems with the law is particularly valuable.

Once a commission has investigated a matter,it makes recommendations for reform. It is then upto the government to decide whether to turn thoserecommendations into law.

Each tribunal and commission operates

differently. For information about a particulartribunal contact it directly.

[1.270] Royal commissionsRoyal commissions are commissions ofinquiry that have particularly strong powersto investigate matters and to call and questionwitnesses.

Although people often call for a royalcommission to inquire into an issue, they are

not commonly held. Recent topics for royalcommissions include, at the Commonwealthlevel, the Equine Inuenza Inquiry in 2008and the Australian Wheat Board Oil-For-FoodInquiry in 2006. In NSW royal commissionshave been held into corruption in the NSWPolice Service in 1997 and into deep sleeptherapy (the Chelmsford Inquiry) in 1990.

Terms of referenceThe state or federal government sets a royalcommissions agenda (its terms of reference).

Royal commission staffThe government appoints a commissioner(or more than one) usually a senior barris-ter or judge. The commissioners staff includeslawyers, investigators and administrativepersonnel.

Powers of royal commissionsThe state and federal Royal Commission Actsconfer wide-ranging powers on royal commis-


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[1.280] Time limitsUsually there are time limits for making a claim ina court or tribunal. For many court actions, theseare set out in the Limitation Act 1969 (NSW);some are set out in the relevant legislation, suchas the Anti-Discrimination Act.

It is very important to get legal advice abouttime limits as soon as something happens thatcould lead to a claim. The discussion belowindicates only the types of limits that may applyand should not be relied on.

[1.290] Criminal casesPolice must commence a prosecution within six

months for summary offences, but there is notime limit for indictable offences.

[1.300] Civil actionsUnder the Limitation Act, a civil claim mustusually be commenced within six years after thedate on which it could rst have been made;that is, after the date the incident happened orthe damage became apparent.

There are exceptions to this. For example,claims based on a deed (see Deeds at [1.400]),

or to recover money or other property under acourt judgment, have a 12-year limit.

For personal injury the limit is usuallythree years, although it can be longer, or canbe extended in certain circumstances, and doesnot apply to a minor until they turn 18.

Time limits in other ActsThere are also limits set out in other Acts. Forexample, compensation claims under the MotorAccidents Acthave to be made within six monthsof the accident unless the person can give a fulland satisfactory explanation for the delay, andclaims under the NSW Anti-Discrimination Actmust be made with 12 months. Always checkthe relevant Act for any time limits.

Extensions of timeSometimes not always the law allows a timelimit to be extended if special conditions aresatised (for example, Limitation Act ss.5256). However, it is not safe to rely on gettingan extension. It is important to nd out whatthe relevant time limit is and to take steps toresolve a legal problem without delay.

Time limits for various matters are discussedthroughout the book.

[1.310] AppealsA person who is dissatised with the decisionof a court or tribunal can sometimes appeal toa higher court for a review, although there are

restrictions on the right of appeal.The decision of the highest court that makes

a decision is nal.

[1.320] Appeals in civil mattersAppeals in civil matters must be lodged within ashort period, usually 21 or 28 days. Appeals areusually limited to a review of errors of law; ahigher court will not usually reconsider ndingsof fact that have been made.

The higher court can either afrm oroverrule the lower courts decision, or send the

case back to the lower court (remit it) to bedecided again.

[1.330] What courts hear appeals?Appeals from NSW courts and tribunals Appeals from the Local Court, the District

Court and most tribunals are heard by theSupreme Court.

An appeal against a decision of a singleSupreme Court judge may be made tothe Court of Appeal, consisting of threemembers of the Supreme Court.

In criminal cases, appeals from the Supremeand District Courts go to the NSW Court of

Criminal Appeal.


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14 The Law Handbook

taken rst to a full bench of the full FederalCourt (three judges), then, in special circum-stances, to the High Court.

Appeals to the High CourtAppeals to the High Court are only possible if

the High Court gives permission. This is calledspecial leave, and is given after a preliminaryhearing when two or three judges of the HighCourt consider whether the issues are suf-ciently important in the development of thecommon law in Australia to justify the appeal.

[1.340] Appeals in criminal casesSee chapter 14, Court, for information onappeals in criminal cases.

Appeals from the NSW Court of Appeal andthe NSW Court of Criminal Appeal can, inspecial circumstances, go to the High Courtof Australia.

Appeals from federal courts and

tribunals Appeals from a judge of the Family Courtgo rst to a full bench of the Family Court(three judges), then, in special circumstances,to the High Court.

Appeals from federal tribunals go to theAdministrative Appeals Tribunal and thento the Federal Court.

Appeals from the Federal Magistrates Courtgo to a single judge or a full bench of theFederal Court or Family Court.

Appeals from the Federal Court, wherenormally one judge decides a case, can be

Enforcing the law[1.350] Criminal lawThe police and the Director of Public Pros-ecutions (DPP) prosecute criminal charges on

behalf of the state.

Prosecutions by individualsPrivate individuals may prosecute criminal offences.However, this is rare; crimes must be proved beyondreasonable doubt very difficult without the resourcesand powers of law enforcement agencies andthere is the risk of having to pay the legal costs of anunsuccessful prosecution.

A person should consider getting legal advicebefore beginning private criminal proceedings.

Government regulatory bodiesA number of bodies created by parliamentenforce the legislation they administer; forexample: the NSW Environment Protection Author-

ity is primarily responsible for enforcing thepollution laws (other organisations, such aslocal councils, also have a role)

the Australian Competition and ConsumerCommission enforces the federal Competi-tion and Consumer Act 2010.

How government bodies enforce laws

Regulatory bodies use a range of strategies toenforce the law, including: pointing out to someone that they are in

breach of the law and requiring somethingto be done

issuing an infringement notice requiring someone to answer questions and

produce documents for examination prosecuting the person in court. Some regu-

latory bodies do their own prosecutions,while others ask the Director of Public Pros-ecutions to carry them out.

Infringement notices

Infringement notices are on-the-spot fines. They givethe person the option of paying the fine or defendingthe matter in court. Examples of matters for which aninfringement notice might be issued are parking anddriving offences, littering, and failing to file a companysannual return.

The notice usually sets a time limit, for example of28 days, to pay a fine or to choose to defend the matterin court.

Anyone who receives such a notice and is not surewhat to do should seek legal advice.


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the Administrative Appeals Tribunal for federallaw. As well, tribunals specialise in particularareas of government activity, such as the federalSocial Security Appeals Tribunal.

Usually a person who is adversely affectedby a government decision can take action tohave that decision reviewed. There are rulesabout standing that say who can enforce thelaw by taking government authorities to court;these are discussed in chapter 10, Complaints.

[1.370] Legal assistanceAnyone who has to defend themselves incriminal proceedings, or make or defend acivil claim, or apply for administrative review,should get advice from a qualied lawyer in

legal practice. Legal aid may be available.For information about people and services who

can give legal advice and assistance, see chapter 5,Assistance with legal problems.

Finding out about the lawThere are many resources for finding out the law,and getting explanations of the law (see Doinglegal research at [1.830]). These may provide all theinformation required and are likely to be easier to readthan statutes and law reports. You will find many ofthem in your local public library.

The Legal Tool Kit

All central public libraries in NSW have a collection ofplain language law books called The Legal Tool Kit. Thekit is kept up-to-date by the Legal Information AccessCentre (LIAC), located at the State Library in Sydney.There are usually about 20 books in the kit, coveringsubjects such as family law, tenancy, buying a house,and defending yourself in court. It always includes thelatest edition of The Law Handbook.

Other resources

Useful internet sites are listed in Internet at [1.930] and

the Contact points for chapter 5, Assistance with legalproblems. See also Doing legal research at [1.910],for how to locate statutes, case law and other legalmaterials and use them effectively.

For more information, contact LIAC or visit its internetsite (www.liac.sl.nsw.gov.au). LIAC has a range of

services to assist the general public in finding legalinformation. LIACs services are free and confidential.

[1.360] Civil lawCivil law is enforced by people and companieswho claim they have been harmed, misled,or treated unfairly. If one persons negli-gence injures another person, for example,

it is up to the injured person to sue to obtaincompensation.Generally, only the wronged or injured

person (plaintiff or applicant) is allowed toenforce the law against the other side (defen-dant or respondent). If a person is unable toparticipate in a case because, for example, theyare under 18 or lacking the intellectual abilityto handle their own affairs, the court can agreeto someone else acting on their behalf.

How civil cases are commenced

Civil cases are commenced in a number ofdifferent ways, depending on the type of caseand the particular court or tribunal that willdeal with it. Each has its own forms, rules andprocedures. The usual procedure is for a plain-tiff to ll out an application or a statement ofclaim and to deliver it to (serve) the defen-dant. The two sides plaintiff and defendant(or applicant and respondent) are called theparties.

Court and tribunal staff can usually provide

information about what a person needs to do.Paying the other partys costsA common rule in enforcing a civil claim is thatthe losing party pays the winning partys legalcosts. This is intended to discourage peoplemaking claims that lack merit. The rule usuallyapplies only to legal costs and witnessesexpenses, not to compensating the person fortheir own time and effort.

The rule is usually enforced in courts, butoften does not apply in tribunals.

Administrative lawAdministrative law governs the processes,powers and decisions of government bodies.

Whether and how government obliga-tions under an Act can be enforced is generallydiscussed in that Act. If review of governmentdecisions is available, it is usually through anadministrative tribunal, such as the Adminis-trative Decisions Tribunal for NSW law and


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16 The Law Handbook

Agreements and deeds[1.390] Oral and written

agreementsLegal agreements such as contracts (see chap-ter 12, Contracts) may be oral or in writing.

Agreements that must be in writingSome agreements, such as agreements for saleof land and leases for a xed period of morethan three years, must be in writing (Convey-ancing Act 1919s.23C).

[1.400] DeedsA deed, also called an agreement under seal, isa document that has been signed, sealed anddelivered, which means that the parties have: signed the document (executed it), and written the words signed, sealed and deliv-

ered on it (s.38).Deeds can be enforced by the courts.

Why a written agreement is betterIf there is a dispute, an oral agreement has to be proved

in court by evidence from the parties about what theyrecall and understood was said. A written agreement isitself evidence of what the parties intended to happen.

What deeds are used forDeeds are used to make something legallybinding; for example, to transfer property fromone person to another, or to set up a trust.Unlike a contract, a deed is legally bindingeven though there is no consideration (this isexplained in chapter 12, Contracts) between

the parties.

Executing a deed

A deed must be signed or marked in thepresence of a witness who must then also signit. Deeds for some purposes (for example,for certain powers of attorney see Power ofattorney at [1.740]) have additional witnessingrequirements.

Execution by a company

A company executes a deed by afxing thecompany seal on the document in the presenceof both a permanent ofcer of the company anda member of the governing body (for example,a director), who then sign the deed as witnesses(s.51A).

The Australian Securities and InvestmentsCommission (ASIC) requires company sealsto display the companys Australian companynumber.

Stamp dutyWhen stamp duty must be paid

Stamp duty must be paid on: deeds executed before 1 July 1998, which

are not valid and cannot be enforced in acourt unless they have been stamped

deeds that convey or transfer property,regardless of when they were executed.

The Stamp Duties Office can advise whether duty ispayable on a document.

How is stamp duty assessed?

The duty on a deed that conveys or transfersany property of value is assessed according tothe value of the transaction.

[1.380] Legal documentsThis section explains some commonly used

legal documents. There are many others notcovered here. Some are discussed in more detail

elsewhere in the book; for example, chapter 43,

Wills, estates and funerals.


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and units. This is because deeds are used fortransactions involving the sale of land.

The formal names of these documents are: certicate of title (for Torrens title land) abstract and chain of title (for old system

land) (see chapter 29, Housing).

Who holds title deeds?

The original title deeds are usually held by theproperty owner. However, if there is a loan withthe property as security (such as a mortgage),the deed is held by the lender (the mortgagee)and the mortgagee is named on the deed.

When the loan is repaid, the mortgageesname is removed from the deed and the deedreturned to the owner.

A copy of the title deed is always held byLand and Property Information NSW (formerlythe Land Titles Ofce).

When must a deed be stamped?

A deed must be stamped within two months ofthe date of execution.

If a person does not pay stamp duty withintwo months, they may face a ne (up to 100%of the stamp duty) as well as a criminal charge.

How to get a deed stamped

A deed may be stamped by: lodging it at the Stamp Duties Ofce, or buying duty stamps from a post ofce and

xing them to the top left hand corner ofthe document. The stamp must then becancelled by drawing two parallel diagonallines through it, and writing the date on oneside of the lines and the persons initials onthe other.

Title deedsThe term deed is often used to describe docu-ments relating to ownership of land, houses

Birth, death and marriage certificates[1.410] RegistrationAll births, deaths and marriages in NSW must

be registered by the NSW Registrar of Births,Deaths and Marriages.A birth, death or marriage certicate is

completed from information supplied to theregistrar, or to another authorised person suchas a marriage celebrant.

It is an offence to supply false or misleadinginformation to the registrar.

[1.420] Obtaining copies ofcertificatesCertied copies of a birth, death or marriagecerticate can be obtained from the registrarby: lodging an application, and paying a fee, and proving your identity.Either an extract or a full copy of the certicatecan be obtained. If an application does not askspecically for an extract of the certicate, afull copy will be provided.

What identification is accepted?List 2

a Medicare card a credit or account card a Centrelink or Department of Veterans Affairs

card a security guard/crowd control licence a tertiary education institution ID card

List 3

a utility account (such as gas or electricity) withcurrent residential address

a bank statement with current residential address

A person can prove their identity for the purpose ofobtaining a birth, marriage or death certificate byproducing: one document from each of the lists below, or if no document from List 1 is available, two docu-

ments from List 2 and one document from List 3.

List 1

an Australian drivers licence an Australian passport a rearms licence

a foreign passport


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18 The Law Handbook

parents change the given name or surnameof a child whose birth is registered in NSW.

How to apply

A person can apply by registering an applicationfor change of name (available from the registry)

and paying the required fee (currently $154,which includes the issue of a new certicate).

A person under 18 needs the consent ofboth parents.

Effect of the change on the certificate

Once the change is recorded, the new nameis the only name to appear on an extract ofthe birth certicate. A copy of the full certi-cate shows the history of name changes andprevious names.

Change of fathers detailsDeletion or alteration of the name of the fatheron a birth certicate requires the consent of: the mother, and the person recorded as the father.The registry requires declarations as to theperiods of personal association of the parents.

Application to record a man as the father

If a mother wants a mans name recorded on thebirth certicate as the father, she must obtainhis consent. If the man does not consent, the

registry will only record his name if a court hasfound that he is the father.

Application to be recorded as the father

If a man wants his name recorded on a birthcerticate as the father, he must obtain themothers consent. This can be done by agree-ment or by sending a paternity acknowledgmentform (available from the NSW Department ofCommunity Services) to the mother to sign.

If the mothers whereabouts are not known,the father can submit a declaration about the

circumstances of parenthood along with asupporting afdavit.

Change of sexA person born in NSW may have the record oftheir sex altered if the person: is over 18, and has had sexual reassignment surgery, and is not married.The current fee (September 2011) is $109.

Effect of the change on the certificate

The new certicate will not show that theperson has changed their sex.

Children born outside NSWIn some circumstances, the birth of children outsideNSW may be registered in NSW; this may beappropriate, for example, if the birth is not registeredelsewhere and the parents usually live in NSW.

Lodging the applicationApplication can be made by lodging either: a standard application form (available from

the registry and all country courthouses,and the registrys internet site), or

a letter that includes: enough information to identify the

certicate required, such as the date orapproximate date of the event and thefull names of the people concerned, and

the reason the certicate is required.Applications can be lodged at the Registry ofBirths, Deaths and Marriages or any NSWcountry Local Court.

Proof of identityA person must provide proof of their identity(see What identication is accepted? above)when applying for a copy of: their own or their childs birth certicate their own marriage certicate the death certicate of a next of kin.

A person applying for a copy of a certicateother than those listed above must also provideidentication and authorisation relating to theperson whose certicate they are seeking or, inthe case of a death certicate, their next of kin.

Anyone who cannot produce the requireddocuments should contact the registry for advice.

Photocopies of suitable documents may bedelivered, posted or faxed with the application.

FeesCurrent fees (September 2011) are:

$46 for a standard application, which willbe processed within three days of lodgment $68 for a priority application, which can be

collected at the counter within one hour orposted within 24 hours.

[1.430] Changing birthcertificate detailsChange of nameThe registrar may change the name recorded ona birth certicate when:

a person registered at birth in NSW lawfullychanges their given name or surname (exceptwhere the change is the result of marriage)


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Changing a name

[1.440] By usageA person may change their name simply by

use, without taking any formal steps. Exceptfor the purpose of opening and operating bankaccounts, a person may use any name theywish, provided the name is not used to deceiveor defraud.

[1.450] By registrationIf, as well as changing their name by usage, aperson wants to formally record the change, adocument showing the change of name can beregistered at the Registry of Births, Deaths and

Marriages. This may be necessary when proofof the change of name is required (for example,to obtain a passport).

ProcedureA statutory declaration called an applicationfor change of name must be completed. Thename is changed as soon as the document isregistered.

FeeThe fee for registering a change of name is $154.

The applicant is issued with a birth certicate (ifthey were born in NSW) or a change of namecerticate. Extra certicates cost $46 each.

ChildrenChildren over 12 must give their consent to anyregistered changes of their name.

[1.460] Bank and other accountsUnder the Cash Transaction Reports Act 1988(Cth) it is an offence, punishable by a ne and/orimprisonment, for someone to open or operatean account for cash purposes in a name otherthan that by which they are commonly known.

What is an account for cash purposes?An account for cash purposes is very broadly definedin the legislation, ranging from bank and buildingsociety accounts to accounts with bookmakers.

The effect of the Act is to restrict the previouslaw whereby a person could operate a bankaccount in any name if there was no fraudulent

intention.

If a person changes their name, presumablythe banks with which they deal would need tobe satised that the change was for all purposes,not just banking purposes, and that the personis commonly known by the new name. Bankshave introduced their own procedures for deter-mining identity when accounts are opened.

[1.470] Changing a childs nameA child under 18 cannot change their namewithout consent.

Who must consent?If the names of both parents are recorded on

the birth certicate, both parents must consentto a change in the childs surname.

If the fathers details are not shown on thebirth certicate, only the mothers consent isrequired.

If a child uses the mothers surname, themother can easily change the childs surname.However, where the child uses the fatherssurname, the mother needs the fathers consentto change the name. Similar considerations inrelation to the mothers consent apply if it is the

father who wishes to change the name.

If consent cannot be obtainedIf consent cannot be obtained, the mother,father or child can apply for a court order.

What the court takes into account

The court regards the childs welfare as theparamount consideration when deciding bywhat name they should be known. Factors thecourt will consider are: the need to retain a connection with the

parent the child does not live with the likelihood of the child experiencing

confusion of identity any embarrassment to the child caused by

having a different surname from the parentthey live with.

When a childs father diesWhen a father dies, a child who used the fatherssurname may retain it, adopt whatever surnameis used by the mother, or use any other name.


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20 The Law Handbook

[1.500] Bodies to notifyA change of name becomes effective throughuse. Certain agencies (such as banks, credit cardproviders, medical funds and employers) shouldbe notied immediately of a name change.

Other agencies can be notied of the changewhen the occasion arises (for example, when anelection is imminent, or a tax return is due).

Property ownersProperty owners do not need to do anythinguntil their land is dealt with in some way (suchas through a sale or mortgage).

Old system title

If the property is held under old system title, thenew name is used but the old name is referred

to on the relevant documents.Torrens title

If the property is held under Torrens title (seechapter 29, Housing), the documents are signedin the new name, and evidence of the change(such as the registered name change or a statu-tory declaration) must be provided.

With Torrens title land, the change of namemay be noted on the certicate of title, thoughthis is not essential.

For information about changing a birth certificate, seeChanging birth certificate details at [1.430].

[1.480] Change of name onmarriageThere is no law requiring a woman to changeher surname on marriage. If a woman doesadopt her husbands name, all that is required

is that she should inform certain institutions ofthe change (see Bodies to notify at [1.500]).

In some situations, such as applying fora passport, the marriage certicate must bepresented to allow use of the different name.

Using more than one nameA woman may use her previous family namefor some purposes (for example, professional ornancial) and her husbands name for others, aslong as there is no intention to deceive.

After a divorce, a woman may use herformer husbands name, her original name ora different name. If she remarries, she may useher new husbands surname, her rst husbandssurname, her original name or any other name,as long as there is no intention to deceive.

[1.490] Change of name on adrivers licenceTo change the name on a drivers licence itis necessary to take the old licence and some

documentary evidence of the change of nameto a motor registry. A licence will then be issuedin the new name.

[1.510] Statutory declarationsA statutory declaration is a written statementof fact declared by a person (the declarant) to

be true, in the presence of a person authorisedto be a witness (see Who can be a witness? at[1.550]).

Usually an afdavit, not a statutory declara-tion, is used in court (see Afdavits at [1.570]).When an afdavit is not required, a statutorydeclaration may give a statement weight; forexample, in support of a plea in mitigation.

False statementsA person who knowingly makes a false statement ina statutory declaration can be fined, imprisoned, orboth.

[1.520] LegislationThe relevant laws are:

the Oaths Act 1900(NSW) the Statutory Declarations Act 1959(Cth).An Act may require a statutory declaration forcertain procedures, such as some applicationsunder the Migration Act 1958(Cth).

In some cases statements are considered truesimply because they are in the form of a statu-tory declaration; for example, under the OathsActs.22 and the Conveyancing Acts.53(2).


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Under the Oaths ActStatutory declarations made under the OathsActcan be declared before: a justice of the peace a solicitor or barrister admitted to practice

in NSW a notary public a commissioner for afdavits the Registrar-General or a deputy registrar-

general the Principal Registrar or a deputy principal

registrar of Births, Deaths and Marriages anyone else authorised by law to administer

an oath.

Under the Statutory Declarations ActA statutory declaration under the federal Statu-

tory Declarations Actmay be made before: a magistrate a person before whom a declaration may be

made under the law of the state in which itis made

an Australian consular ofcer or diplomaticofcer (dened by s.2 of the Consular FeesAct 1955(Cth)).

Finding a witnessA justice of the peace is usually available at a Local

Court or a bank, among many other places. Lawyersare available at legal aid offices, private firms andcommunity legal centres. The NSW Attorney GeneralsDepartment has an online list of justices of the peace.

[1.560] The role of the witnessThe witness must be satised, through ques-tioning or observation, that: the declaration is in the form prescribed by

the Act under which it is made, and it is signed and witnessed properly, and

the signature is that of the declarant.The witness should not read the declaration(unless the person making the declaration can-not read it see below).

SigningThe witness should say to the declarant wordssuch as: Is this your name and signature, anddo you declare the contents of this declarationto be true and correct to the best of your knowl-edge and belief?

The declarant should then say yes, and sign

the declaration in the presence of the witness.

[1.530] What should be in thedeclarationStatements of factThe declaration should contain only statementsof fact. This can include the fact of holding a

belief; for example: To the best of my knowl-edge and belief the will was made in 1958.

Each fact should be stated in a separateparagraph, and it is advisable to list them inchronological order.

Statements of opinionStatements of opinion such as: I think the willmay have been made in 1958 should not beused.

The juratThe place (that is, the name of the town, suburbor locality) and date of the declaration, and thename of the witness before whom it is made,must be stated at the end of the statutory decla-ration. This is called ajurat.

[1.540] Is a form necessary?Printed statutory declaration forms are avail-able for around a dollar from law stationersand newsagents, but there is no legal require-

ment to use them as long as the correct form ofwords is used (see Standard form of a statutorydeclaration at [1.560]). The declaration neednot be typed, as long as the writing is legible.

Form of wordsUnder the Oaths Act

Statutory declarations under the Oaths Actmay be in the form of either Sch.8 or Sch.9 tothe Act. This is set out in Standard form of astatutory declaration at [1.560].

Under the Statutory Declarations Act

A statutory declaration made under the Statu-tory Declarations Actshould be in accordancewith the form set out in the Schedule to the Act.This is set out in Standard form of a statutorydeclaration at [1.560].

[1.550] Who can be a witness?A statutory declaration must be declared beforea person referred to as the witness.


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22 The Law Handbook

what they are saying that they should tell the truth, and what the truth of the situation is.A statement to this effect should be added to thejurat (see The jurat at [1.530] for what this is).

InterpretersIf the declarant is hearing or speech impaired,does not know English or has difculty under-standing English, the declaration must betranslated by an interpreter. The witness admin-isters an oath as follows:

You shall truly and faithfully interpret thecontents of the statutory declaration and allother matters and things relating to the decla-ration, and render the English language intothe [other] language, and the [other] languageinto the English language, according to thebest of your skill and ability.

AnnexuresAny annexures (attachments to the declara-tion) must each be certied by the witness asfollows:

I hereby certify that this [and the following[number] page[s]] is/are the annexure marked(A), referred to in the statutory declarationof [name] declared before me at [place] on[date].

If the annexure has more than one page

If the annexure is more than one page, thatfact should be referred to in the text of thedeclaration (but not necessarily in the witnessscertication). The witness may sign eachadditional page. The declarant need not signannexures.

If there is more than one page

If there is more than one page, both declarantand witness sign at the bottom of each page.

Alterations

The witness must initial any alterations in the

margin. The declarant need not do this.People who cannot read the declaration

If the declarant is blind or illiterate, the persontaking the declaration should: read the document to them or have someone

else read it aloud in their presence, and be satised that the declarant fully under-

stands and agrees with the contents.The following statement, signed by the witness,should be included in the jurat (see The jurat at[1.530]):

It appearing to me that the declarant is blind[or illiterate], I certify that this declarationwas read to her/him in my presence and thats/he seemed to understand it.

If the declarant cannot sign their name

If the declarant cannot sign their name, thewitness should write it next to the jurat, andask the declarant to make a cross or mark likethis:

X His mark

Arthur BrownChildren

Children between six and ten are not consid-ered competent to swear in court that whatthey say is true. They are, however, consideredold enough to make a statutory declaration,as long as the witness is satised that the childunderstands:


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Standard form of a statutory declaration

Under the Statutory Declarations Act

I, [full name] of [address], [occupation], dosolemnly and sincerely declare: [set out thestatements in point form, i.e.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . etc.]And I make this solemn declaration by virtue ofthe Statutory Declarations Act 1959, and subject tothe penalties provided by that Act for the makingof false statements in Statutory Declarations,conscientiously believing the statements containedin this declaration to be true in every particular.. . . . . . . . . . . . . . . . . . . .. [signature of declarant]Declared at [place] this [day] of [month], [year]before me . . . . . . . . . . . . [signature of witness]. . . . . . . . . . . . . . . . . . . . . . . . [title of witness]

Under the Oaths Act

I, [full name] of [address], [occupation], dosolemnly and sincerely declare: [set out thestatements in point form, i.e.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . etc.]and I make this solemn declaration conscientiouslybelieving the same to be true, and by virtue of theprovisions of the Oaths Act 1900.ORand I make this solemn declaration, as to thematter aforesaid, according to the law in thisbehalf made, and subject to the punishment bylaw provided for any wilfully false statement in anysuch declaration.. . . . . . . . . . . . . . . . . . . . . [signature of declarant]Declared at [place] this [day] of [month], [year]before me . . . . . . . . . . . . [signature of witness]. . . . . . . . . . . . . . . . . . . . . . . . [title of witness]

[1.570] AffidavitsAfdavits are written statements of fact swornor afrmed by a person (the deponent) to betrue, in the presence of a person authorised

to be a witness. Afdavits are used in courtproceedings in place of spoken evidence. Astatutory declaration is usually enough in othersituations.

An afdavit used in court proceedings mustbe served on all other parties involved in theproceedings. The person who made the afda-vit may still be required to attend court to bequestioned on its contents.

[1.580] Who can make anaffidavit?Like a statutory declaration, an afdavit mayonly be made by someone who understands: what they are doing, and the nature of the oath or afrmation.

ChildrenA child aged between six and ten cannot legallyswear an oath, and therefore cannot make anafdavit. If necessary, a childs statement may(usually) be put in a statutory declaration.

[1.590] What should be in theaffidavit

Afdavits are used like spoken evidence, andthe rules of evidence apply: The text of the afdavit should be divided

into numbered paragraphs. Each paragraphshould relate to a distinct matter.

The facts in the afdavit should berelevant.

The afdavit should be in the rst person(for example, I met the defendant . . . . . ).

Conversations must be reported in directspeech (for example, I said . . . . . . . . . .,

then she said . . . . . . . . . ). The text should contain only facts of whichthe deponent has rst-hand knowledge (thatis, not known only by hearsay).

Statements of opinion, unless it is expertopinion, should be avoided.

AnnexuresDocuments referred to in the afdavit, or copiesof them, should be attached and marked asAnnexure A, Annexure B and so on.


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Interpreters

If the deponent is hearing and/or speechimpaired or does not know English, the afda-vit must rst be interpreted (see Interpreters at[1.560]).

AlterationsAlterations must be initialled by the witness.In some jurisdictions the deponent must alsodo this.

AnnexuresAny annexures (attachments to the afda-vit) must each be certied by the witness asfollows:

This [and the following [number] page[s]] isthe Annexure marked (A) referred to in the

Afdavit of . . . . . . . . . . . . . . . . [name] swornon . . . . . . . . . . [date]Before me . . . . . . . . . . . . . . . . . . [signatureof witness]

Justice of the Peace/Solicitor.

Use a lawyerAffidavits are best prepared with the help of a lawyer.The rules about their form and content vary betweencourts (for example, the District and Family Courts),and an affidavit must be in a form acceptable to thecourt concerned. If it does not comply with the relevant

rules, it may be struck out by the judge or magistrate.

Justices of the peaceA justice of the peace traditionally had both judicialand ministerial (administrative) functions in the legalsystem. The judicial function (that is, to decide onguilt or liability) exists to various extents in the federal

jurisdictions.

In NSW

A justice of the peace in NSW can act judicially only ifformally called on to do so by the government in a timeof real need. In practice, justices of the peace perform

only administrative functions.In NSW, the functions and duties of the office areset out in theJustices of the Peace Act 2002. They haveduties under the Oaths Act to administer oaths andwitness documents such as statutory declarations andaffidavits.

Justices of the peace are nominated by a memberof the NSW parliament and appointed by the AttorneyGeneral for ve years. They may be re-appointed.

The Attorney Generals Department maintains alist of all NSW justices of the peace and their contactdetails.

[1.600] Who can be a witness?Afdavits may be sworn in the presence of: a commissioner for afdavits a justice of the peace a solicitor or barrister.

Standard form of an affidavitThe usual form of an affidavit is:

On [date], I, [full name] of [address], [occupation]afrm/say on oath that:[set out the statements in point form, i.e.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . etc.]SWORN at [place]Before me . . . . . . . . . . . . . . [signature of witness]

Justice of the Peace/Solicitor. . . . . . . . . . . . . . . . . . . . . [signature of deponent]

[1.610] The role of the witnessThe witness should rst make sure that the af-davit is legible.

Administering the oathThe witness administers the oath or afrma-tion by asking the deponent to swear or afrmthat the contents of the afdavit are true. Thedeponent must either: swear that the facts are true by taking an

oath, or make a statement afrming that the facts

are true.The witness should not allow an afdavit tobe sworn if the person does not understandeither its contents or the nature of the oath orafrmation.

SigningThe witness should see the deponent signing: the end of the document, in the jurat (see

The jurat at [1.530] for what this is), and the bottom of each page.

The witness then also signs the jurat, addingtheir title, and signs the bottom of each page.

People who cannot read the declaration

If the deponent is blind or illiterate, the witnessshould add, and sign, the following statement:

It appearing to me that the deponent is blind[or illiterate], I certify that this afdavit wasread to him/her in my presence and that he/she seemed to understand it.


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Notices to attend court

[1.620] Court attendance noticesA court attendance notice is a document that

tells a person to attend court to answer a chargeor in response to: a claim against them, or an application for an order against them.Some court attendance notices used to be calledsummonses.

What is in the notice?Both court attendance notices: state the charges or claims made against the

person (the defendant) state what court to go to, and when

advise the person to seek legal advice (whichshould be done as soon as possible).

Getting legal advice

Anyone unable to afford a private solicitorshould contact: the Legal Aid Commission a community legal centre a chamber registrar at a Local Court, or the LawAccess website.

See Contact points in chapter 5, Assistance withlegal problems for contact details.

The document should not be ignored. Ifanything in it is unclear, legal advice should besought.

Is there time to respond?The notice must allow enough time for thedefendant to prepare and le a response. Ifenough notice is not given, the defendant ortheir lawyer can (and should) attend the court

on the day named and ask for the hearing to bepostponed to another date.

If the person does not attend courtIf a person does not attend court after receiv-ing a court attendance notice the matter mayproceed without them, and the other side mayobtain the orders they seek in the defendantsabsence (this is called an ex parteorder).

If the notice was not receivedA person who receives notice of an ex parte

order against them who can prove that theydid not at any stage receive a court attendancenotice can apply to have the order set aside andthe matter heard again.

It is usually up to the plaintiff or applicant(the person who started the proceedings) toprove that the notice was served. The defendantmay also produce evidence that they were, forexample, overseas or interstate at the time andcould not have received the notice.

[1.630] Statements of claimCivil cases are commenced by the issue of astatement of claim. These documents do nothave a date to attend court.

A person wishing to dispute or defend acivil claim must lodge a defence with the courtwithin 28 days of receiving the statement ofclaim.

Legal advice should be obtained as soon aspossible.

[1.640] SubpoenasA subpoena is a document from a court thattells someone that they must attend at a partic-ular time and date to be a witness in a hearingand give evidence. It might also tell the personto produce documents to be used in the case.

Get legal advice!Anyone receiving a subpoena should seek legal adviceimmediately. It is an offence to ignore a subpoena,and failure to attend court can result in arrest. It isalso possible to be charged with contempt of court forignoring a subpoena.

If there is not enough time to get legal advice,it is possible to ask the court if the matter canbe delayed for a short while so that advicecan be sought.


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26 The Law Handbook

[1.650] PassportsAustralian passports are issued to Australiancitizens by the Minister for Foreign Affairsunder the Australian Passports Act 2005(Cth).

[1.660] EligibilityThe minister must issue a passport to an Austra-lian citizen (s.7) unless: the person is an unmarried minor (that is, a

person under 18) who does not have theirguardians consent, a court order or otherspecial circumstances (s.11)

there are reasons for not issuing a passport

relating to: Australian law enforcement matters(s.12)

international law enforcement co-operation (s.13)

potential for harmful conduct (s.14) there have been two or more passports

issued to the person in the past ve years(s.15)

money is owed to the Commonwealth(s.16)

the person already holds a valid Australianpassport (s.17).

ChildrenSince 1986, people under 18 have received theirown passport.

Permanent residentsPermanent residents are not entitled to anAustralian passport.

[1.670] Applications

An application for a passport can be made ateither a passport ofce or a post ofce.

Documents requiredThe application must be accompanied by: evidence of citizenship; for example:

an Australian passport issued after 1 July1983

an original or certied full copy of abirth certicate

for people born overseas, a citizenship

certicate

two passport-sized colour photographs evidence of identity; for example:

a drivers licence a credit card a rates notice an academic record

evidence of a change of name, if applicable;for example: a marriage certicate a statutory declaration a registered name change or deed poll

evidence of sexual and gender diverseidentity, if applicable, being a letter from amedical practitioner certifying:

appropriate clinical treatment for changeof sex and gender identity, or

intersex identity consent documents, for applicants who are

under 18 and unmarried.A full list of the type and number of documentsrequired for identication is on the applicationform and on the Australian Passport Ofcewebsite.

Timeframe

Passports are usually issued within ten workingdays.

Urgent applicationsIf the application is urgent, the person mustexplain the circumstances to the passportofcer at a post ofce, showing documentsindicating the cause of the urgency, and theirairline tickets.

CostThe current cost of a standard passport (32 pages)

is $226 for an adult and $113 for a child.Larger passports (64 pages) are available forfrequent travellers at a cost of $340 for adultsand $170 for children.

[1.680] AppealsIn accordance with the Australian PassportsAct, certain decisions of the Department ofForeign Affairs about issuing a passport maybe reviewed. A written request should be sentto the legal adviser at the department within

28 days.


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The Family Court may do this if thereis concern that a person may remove a childfrom the country. Criminal courts may do it inrelation to a person who is granted bail.

Entering or leaving Australia

When a person enters or leaves Australia,they must show their passport to the relevantofcial.

Usually the passport is inspected andreturned, but the ofcial can retain the passportif they have reasonable grounds for suspicion.

Dual nat